Kaly and Kaly

[2007] FamCA 628

FAMILY COURT OF AUSTRALIA

KALY & KALY [2007] FamCA 628

FAMILY LAW - STATUTORY INTERPRETATION - Application to transfer part of pending proceedings which relate to alteration of property interests to Federal Magistrates Court and for this court to retain the parenting aspect of the same case in the less adversarial trial process – Litigants seek transfer on basis that they will be accorded a speedier hearing in the Federal Magistrates Court – Consideration of whether power to transfer proceedings includes power to transfer only part of proceedings – Section 33B of the Family Law Act considered – Undesirability of conducting proceedings in 2 courts concurrently – Intention of legislation discerned by reference to Explanatory Memoranda to the Bills which established the Federal Magistrates Court in federal court system – All or nothing, not satisfied that there is power to transfer only part of pending proceedings – Application not granted.

Family Law Act 1975
Federal Magistrates Act 1999
Federal Magistrates (Consequential Amendments) Bill 1999
Federal Magistrates Bill 1999
Acts Interpretation Act 1901 (Cth)

APPLICANT: Mrs Kaly

RESPONDENT: Mr Kaly

FILE NUMBER: DGF 44 of 2006

DATE DELIVERED: 2 May 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 2 May 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr P. Le Souef

SOLICITOR FOR THE APPLICANT: Le Souef Preston & Associates

THE RESPONDENT: In person

Orders

1. That the further hearing of the wife’s application in a case filed 3 April 2007 to Justice Watt on  Monday 4 June 2007 at 2:15pm.

2. That by not later than Friday 25 May 2007 the husband and wife exchange a minute of the Orders which he or she seeks in relation to property specifying whether such Orders will be sought pursuant to section 78 or section 79 of the Family Law Act 1975.

3. That by not later than Friday 25 May 2007 the husband inform the wife and the wife inform the husband, via their respective solicitors if they are legally represented, of whether he or she will seek that property matters be determined by the Honourable Justice Watt under Division 12A of the Family Law Act 1975.

4. That this matter be listed before me on Monday 4 June 2007 following the conclusion of the proceedings before Justice Watt Justice Watt so orders, if either of the parties wish to do so on notice to other and by arrangement with my Associate … ( … .

IT IS NOTED INCONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Bennett delivered this day will for all publication and reporting purposes be referred to as Kaly & Kaly.  

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGF 44 of 2006

MRS KALY

Applicant

And

MR KALY

Respondent

REASONS FOR JUDGMENT

(ex tempore)

1. This matter comes before me in the duty list.  It is the first return date of the wife's application in a case filed 3 April 2007.  

2. The wife is represented by Mr Le Souef, solicitor. The husband is self represented. The wife seeks that, pursuant to s 33A of the Family Law Act 1975, the further hearing of her Form 1 application filed on 23 January 2006 insofar as it seeks orders in respect of property matters, be transferred to the Federal Magistrates Court sitting at Dandenong.  She also seeks such other orders as the court deems fit. 

3. The parties agree that their pending property proceedings should be transferred to the Federal Magistrates Court at Dandenong because the final determination in the Federal Magistrates Court will be quicker and cheaper.  In the meantime, the proceedings in relation to their children B born … January 1997 and M born … September 1993, can stay in the Family Court and be determined by Watt J in due course.  Unfortunately, I do not see that I have power to make orders in those terms. 

4. The affidavit in support of the wife’s application is sworn by Peter Le Souef, solicitor.  He deposes to being the wife's practitioner, to a brief history of the proceedings including the following events:-

   a)The proceedings were in the Family Court at Dandenong on 23 January 2006 by the wife’s application in which she sought orders in relation to the children and declaratory relief under s 78 in relation to her interest in the former matrimonial home at S and, as I will comment later, possible relief, by way of alteration of property interests, under s 79;

   b)the husband’s response was filed on 14 February 2006.  He seeks parenting orders different from those of the wife and, I think it is fair to describe, relief under s 79;

   c)a case conference was held at Dandenong on 21 February 2006 and at that time the matter was accepted into the children's cases project;

   d)on 2 June 2006, a conciliation conference was held at Dandenong in relation to property matters.  The conference did not resolve matters;

   e)when the matter came into the children's cases program, necessarily in Melbourne, it was assigned to Watt J. 

   f)

   the parenting matter was first listed before Watt J on 21 September 2006.  Certain orders were made including a continuation hearing to

   
   

   10 November 2006;

   g)on 10 November 2006 further children's orders were made and, by paragraph 8 of the Order, His Honour adjourned the matter by way of a further continuation hearing to Monday 4 June 2007 at 2:15pm.  By paragraph 10 ordered as follows:

   Both parties are at liberty to institute proceedings for property settlement but such proceedings will remain separate from this CCP hearing and are not to be listed together with those proceedings.

   h)the wife seeks that the property proceedings be determined as soon as possible.  As indicated, the husband agrees;

   i)Mr Le Souef has advised the wife, and she accepts, that the Federal Magistrates Court at Dandenong will be in a position to determine the property matter earlier than the matter could be determined in this court if the property aspect of the matter remains in our trail notice pool to be allocated a hearing in the ordinary course.

5. There are no reasons for decision of Watt J’s order of 10 November 2006 currently available. 

6. Mr Le Souef, solicitor for the wife, was not in court on 10 November 2006. However, I am advised by Mr Le Souef that his client has not excluded a consideration of consenting to or seeking that the property aspect of the proceedings be dealt with under the less adversarial trial proceedings provided for in Division 12A of the Act.

7. Mr Le Souef agreed that his application should be expressed to be pursuant to

   
   

   s 33B rather than s 33A. Section 33B provides as follows:-

Discretionary transfer of proceedings to the Federal Magistrates Court

(1)  If a proceeding is pending in the Family Court, the Family Court may, by order, transfer the proceeding from the Family Court to the Federal Magistrates Court.

(2)  The Family Court may transfer a proceeding under subsection (1):

(a)  on the application of a party to the proceeding; or

(b)  on its own initiative.

[…]

(6)  In deciding whether to transfer a proceeding to the Federal Magistrates Court under subsection (1), the Family Court must have regard to:

(a)  any standard Rules of Court made for the purposes of subsection (4); and

(b)  whether proceedings in respect of an associated matter are pending in the Federal Magistrates Court; and

(c)  whether the resources of the Federal Magistrates Court are sufficient to hear and determine the proceeding; and

(d)  the interests of the administration of justice.

(7)  If an order is made under subsection (1), the Family Court may make such orders as it considers necessary pending the disposal of the proceeding by the Federal Magistrates Court.

(8)  An appeal does not lie from a decision of the Family Court in relation to the transfer of a proceeding under subsection (1).

(8A)  The Federal Magistrates Court has jurisdiction in a matter that:

(a)  is the subject of a proceeding transferred to the court under this section; and

(b)  is a matter in which the court does not have jurisdiction apart from this subsection.

To avoid doubt, the court's jurisdiction under this subsection is not subject to limits set by another provision.

(9)  The reference in subsection (1) to a proceeding pending in the Family Court includes a reference to a proceeding that was instituted in contravention of section 33A.

[…]

1. Like the wife, the husband wants the property proceedings to be determined as soon as practicable.  Whereas the husband originally sought that property issues not be determined until after the conclusion of parenting matters, that is not obviously a concern for him at the moment.  The husband is most concerned that parenting orders, which have been made, have not been complied with.  However, he makes no submissions to me to the effect that the property proceedings now ought to be postponed because of any consideration in relation to parenting matters. 

2. Turning to the property relief sought by the wife, apart from the declaratory relief, she seeks orders in relation to superannuation which would have her retain what is her legal entitlement in any event.  She seeks that, in the event the court does not grant the declaratory relief she seeks, the court order that any interest that the husband may have in the property be deemed to have been transferred to the wife in partial settlement of the wife's entitlement to a property settlement.  It is not the clearest sort of application one could have.  However, I think that a fair interpretation is that it leaves the door open for the exercise of discretion under s 79 to alter the property interests of the parties to the marriage.  The relief sought by the wife in relation to superannuation will not be available to her absent an application under s 79 because the court’s powers to split superannuation interests are an adjunct to its exercise of the power under s 79. 

3. As indicated, the husband's response was filed on 14 February 2006.  He sought child related orders.  In paragraph 3 of the application he sought that the court not determine property settlement until residency is established.  Once residency is established, he sought that the balance of finances be determined accordingly.  He sought an independent valuation of the former matrimonial home, orders in the nature of discovery and payment of liabilities.  The husband does not specify the section pursuant to which he seeks the relief although it seems to me that it is likely to be s 79.  I suppose his adjournment application could have been under s 79(5). 

4. So, whereas Watt J gave the parties liberty to institute proceedings for property settlement, it seems to me that they had already done so – although their applications might not set out as elegantly as possible what relief they seek.

5. The factors which the court should consider in the exercise of its discretion to transfer proceedings are set out in s 33B(6) and deal with the resources and the interests of the administration of justice. A preliminary application of those considerations would appear to support the property proceedings being transferred to the Federal Magistrates Court. However, in my view, the first step must be to identify what is sought to be transferred. The second step is to establish that I have power to order the transfer sought. I am now at the second step.

6. The solicitor for the wife submits that the definition of proceeding in s 4 is sufficiently wide so that the parenting matters before this court could be looked at as one proceeding and the property related matters before this court could be looked at as another proceeding.  Section 4 of the Act provides:-

   proceedings means a proceeding in a court, whether between parties or not, and includes cross proceedings or an incidental proceeding in the course of or in connexion with a proceeding.

7. The Act does not define proceeding as including part of a proceeding.  If it was intended that proceeding include part of a proceeding then it would have been easy enough for the legislation to have been drawn to do so.

8. The Federal Magistrates Act 1999 provides at s 19 that, if proceedings in relation to an associated matter are before the Family Court, then proceedings in relation to the same matter cannot be instituted in the Federal Magistrates Court.  There is a mirror provision in the Family Law Act 1975 and it is found in s 33A which provides that:

   Proceedings must not be instituted in the Family Court where there are proceedings in respect of an associated matter pending in the Federal Magistrates Court with the exception of an application for a divorce or an application alleging contravention of an order.

9. I have not had the benefit of any detailed legal submissions on this point which is understandable as the parties agree on the outcome. However, I must determine the issue as best as I can. I am not aware of any previous decisions in relation to s 33B which are relevant to the issues in the present case, that is, whether I can transfer part of a pending proceeding to the Federal Magistrates Court and retain the balance of the matter in the Family Court.

10. Because I am required to interpret relatively new legislation and I wish to confirm that the meaning of legislation is the ordinary meaning conveyed by the text, within the context of the legislation and taking into account the purpose or object underlying the legislation, I am permitted to have regard to the Explanatory Memorandum to the Federal Magistrates (Consequential Amendments) Bill 1999 as well as to the Federal Magistrates Bill 1999[1]. 

    [1] Pursuant to s 15AB of the Acts Interpretation Act 1901 (Cth).

11. The Federal Magistrates (Consequential Amendments) Bill 1999 made consequential amendments to legislation to give the Federal Magistrates Court concurrent jurisdiction with either the Federal Court or the Family Court under various Acts including the Family Law Act 1975. Item 25of the Explanatory Memorandum to the Bill describes the purposes for which s 33A and s 33B were inserted into Part IV, Division 5 of the Family Law Act in the following terms (my emphasis):-

    Subsection 33A(1) provides that proceedings are not to be instituted in the Family Court in respect of a matter if the Federal Magistrates Court has jurisdiction in that matter and proceedings in respect of an associated matter are pending in the Federal Magistrates Court.  That is designed to ensure that proceedings dealing with related issues are not split between different federal courts.

    Subsection 336A(2) provides that this section does not apply to enforcement proceedings under Division 13A of Part VII or Part VIIIA.  This ensures that proceedings for enforcement of Federal Magistrates Court final orders may still be instituted in the Family Court even if there is an associated matter pending in the Federal Magistrates Court.  This recognises the nature of family law proceedings, where one matter may be completed and another matter still pending.  It could be argued that in all family law cases that any proceedings relating to a particular marriage are associated matters.  However, as the first matter is completed, proceedings for enforcement should be available in the Family Court, subject always to the discretion of each court to transfer proceedings to the other court, if this is appropriate.

    Subsection 33A(3) still allows associated proceedings, if issued inadvertently in the Family Court, to be transferred to the Federal Magistrates Court, and the proceedings will be deemed to have been validly commenced (also see subsection 33B(9)).

12. The Federal Magistrates Bill 1999 established the Federal Magistrates Court.  Clause 14 of the Bill (enacted as s 14 of the Federal Magistrates Act 1999) provided the Federal Magistrates Court with sufficient power to deal with and determine all matters of controversy between the parties completely and finally.  Clause 18 of the Bill (enacted as s 18 of the Federal Magistrates Act 1999) provided the Federal Magistrates Court with power to deal with any associated matters within its jurisdiction.  In relation to Clauses 14 and 18 the Explanatory Memorandum to the Bill states as follows (my emphasis):-

    Clause 14 - Determination of matter completely and finally.

    25. Clause 14 gives the Court the power to conclusively determine all the claims that are before the Court and to grant whatever remedies are necessary to do so.  This provision is designed to avoid multiple proceedings arising from the same dispute between the parties.

    […]

    Clause 18 – Jurisdiction in associated matters.

    30. Clause 18 gives the Federal Magistrates Court jurisdiction to deal with all matters associated with any matter that is within the jurisdiction of the court.  The purpose of this provision is to avoid multiple proceedings by conferring jurisdiction on the Court in associated matters, which may be outside the jurisdiction of the Court, which must be disposed of at the same time as the matter before the Court so that the matter may be completely and finally determined. This provision is based on section 32 of the Federal Court of Australia Act 1976.

13. Clause 19 of the Federal Magistrates Bill 1999 deals specifically with the prohibition against instituting proceedings in the Federal Magistrates Court in an associated matter is before the Family Court.  The Explanatory Memorandum states:-

    Clause 19 – proceedings not to be instituted in the Federal Magistrates Court if an associated matter is before the Federal Court or the Family Court.

    31. Subclause 19(1) provides that proceedings must not be instituted in the Federal Magistrates Court if associated proceedings have been commenced in the superior court.  This is to ensure that matters are completed in the Court in which they commenced and that parties do not seek to have the same matter dealt with in the Federal Magistrates Court by filing similar proceedings in that court.

    32. Subclause 19(2) ensure that proceedings for enforcement of Family Court orders may still be instituted in the Federal Magistrates Court even if there is an associated matter pending in the Family Court.  This recognises the nature of family law proceedings where one matter may be completed and another matter still pending.  It could be argued that in all family law cases that any proceedings relating to a particular marriage are associated matters.  However, as the first matter is completed proceedings for enforcement should be available in the Federal Magistrates Court.  If the nature of the associated matter in the Family Court provides a reason not to hear enforcement proceedings separately, it is open to a party to apply under Part 5 to have the proceedings transferred to the Family Court.

14. In my view, the proposition that pending parenting proceedings and pending property proceedings arising out of the one marriage are, vis a vis each other, associated matters is accessible from the above discussion about “associated matters” in the context of sub-clause 19(2).  I am mindful that the prohibition against the institution of proceedings in an associated matter applies only if the proceedings in the other court are pending, it does not apply where they are finalised.  

15. It appears to me clear from the legislative structure which enabled the establishment of the Federal Magistrates Court in the first place, that it was not intended that parties run proceedings in two courts concurrently. 

16. For the above reasons I am not going to accede today to the application of the wife for a transfer of property matters to the Federal Magistrates Court.  However, I will not dismiss it either.  It seems to me that, this is a matter of which Watt J is seized.  At least the parenting aspect of it.  His Honour may be better placed to consider how the property matter is best accommodated with a minimum of delay and expense to the parties because, if requested to do so, it would be within his Honour’s discretion to consolidate the Part VIII proceedings with the Part VII and hear them together.  That is something

    
    

    I cannot do. 

1. Whereas I may have assumed that at least the property aspect of the proceedings was placed in the pool of cases awaiting a Trial Notice Listing at the conclusion or shortly after the conciliation conference on 2 June 2006, my enquires indicate otherwise.  I am advised by the Acting Court Services Manager that on 2 June 2006, child and property issues were adjourned to a directions hearing on 6 July 2006.  No-one addressed me on what happened on 6 July 2006 save that it appears that the matter has never been placed into the Trial Notice Pool. 

2. I am also advised by the Acting Court Services Manager that, had the property aspect of the proceedings been placed in the Trial Notice List pool, after the conciliation conference, it would be due to come out very shortly. 

3. I note that the parenting proceedings are next before Watt J on 4 June 2007 at 2:15pm.  Hopefully, there is no impediment to Watt J dealing with the property proceedings under Part 12A.  That issue has not been determined.  Based on the submissions on behalf of the wife and by the husband, it appears not to have been raised.  It is an issue which I think should be resolved before this court looks at how and when a hearing of the Part VIII proceedings can be accommodated. 

4. No doubt the parties will consider the delay and extra costs associated with two sets of proceedings, held concurrently or consecutively.  I do not know whether it was made clear to the parties that entering into the children’s cases program could, potentially, prolong or duplicate the litigation process for them. 

5. I have suggested to the parties that each decide whether or not he or she wants Watt J to deal with the property matters. If they do want Watt J to do the property aspect, then they can say that they consent under Division 12A to having the property matters determined as in the less adversarial trail process.

6. If for some reason the property proceedings cannot be consolidated and the property proceedings are not to be determined by Watt J, then I invite the parties to have the matter listed before me by arrangement with my Associate on 4 June 2007.  I am in chambers at that time.  It can be listed up until 5 o'clock on that day for the purpose seeing when the parties can be allocated a hearing for their property matter – hopefully not so much later than they would have got in the Federal Magistrates Court at Dandenong had I transferred out part of the proceedings today. 

7. In the meantime it is necessary for the parties to work out what orders they want the court to make about their property.  That is; whether they want relief under s 78 or whether they want relief under s 79 or both.  I will order that prior to 4 June 2007 each party exchange with the other a minute of the order which they seek be made in relation to property matters.  This means that they do not have to amend any application or response at this point.  They need merely to identify what orders they want the court to make and they can indicate to the court, and to each other, how their application/response will be amended in due course. 

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate: 

Date:  25 June 2007